Senate debates

Thursday, 9 August 2007


Legal and Constitutional Affairs Committee; Reference

12:15 pm

Photo of Robert RayRobert Ray (Victoria, Australian Labor Party) Share this | Hansard source

It is not often I address the Senate on national security matters and say that the minor parties, the Greens and the Democrats, come with a genuine approach, but they have—I acknowledge that. They are genuinely concerned about these issues. But I think it is wrong to link the antiterrorism legislation with the failures in the Haneef case. There is not much linkage at all. And it is not true to say that this series of legislation is not reviewed. The Sheller committee reviewed a whole range of legislation. The Joint Standing Committee on Intelligence and Security reviewed the questioning and detention regime with regard to ASIO and are currently completing their review of the proscription regime.

However, having 32 pieces, at a minimum, of antiterrorism legislation is not good for an understanding in the Australian community, and there is a strong case for consolidation. The UK has four to five pieces of antiterrorism legislation. One thing I want to again draw to the attention of this Senate is the recommendation by the joint intelligence committee—unanimously carried by four Liberal, one National and four Labor members—of the desperate need to set up an independent review of all terrorism legislation on an annual basis, based on the UK model. What happens in the UK is that Lord Carlile reviews antiterrorism legislation each year and makes recommendations to the House of Commons. I cannot imagine why we cannot go to that process—the consolidation and finetuning of legislation by someone who does not have a partisan political barrel to push.

The government are yet to respond to that recommendation. I urge them, and I urge the minister at the table, Senator Johnston, to seriously look at that recommendation. It is not a matter of partisanship—otherwise five of his colleagues would not have signed up to it—but it is a way to cut the Gordian knot.

The more I look at the Haneef matter, the more I am not sure it is a question of the legislation. If there are faults in the legislation, they are more faults in criminal law legislation than antiterrorism legislation. One day we may have to address those provisions relating to how long someone can be detained and under what circumstances, but I do not see it as a failure of national security legislation in this place.

But we have to address the fact that problems have occurred—that the Australian Federal Police have acted on and disseminated information that was not correct. Do not take this as a major criticism; everyone makes mistakes. That is why you have rubbers on the ends of pencils. But, nevertheless, when mistakes are made we have to examine them to know how to avoid them in future. It is even clearer that the DPP made mistakes, given the press conference by Mr Bugg and the dropping of charges. We are entitled to know why the mistakes occurred and what they are going to do to rectify them into the future.

But I tell you what has distressed me, someone who was on the security cabinet for six years and has been on the national security and joint intelligence committees for eleven years: how did all this material get in the public domain? How did it all flood out into the newspapers and who disseminated it? Was it ministerial officers? Was it the DPP’s office and staff? Was it the Federal Police? Was it the defence team? One party I can find guilty straightaway is the defence team, but only in terms of retaliation. There was a mass of material put into the public domain from somewhere. This is not conducive to fair treatment of persons detained and it does smack of panic and sensationalism. We have a requirement on law enforcement bodies that they do not disseminate such information.

At the moment, worldwide we have a clash between intelligence agencies and law enforcement agencies of philosophy and methodology. On one hand the intelligence agencies protect their information. They value secrecy. Police have always had to put information out to get more information back. I am not criticising the police for doing that—that is part of their investigative technique—but, when you bring intelligence and law enforcement together dealing with secret information, that can become a fundamental problem. I noticed in the UK recently the police denying that they had leaked a particular matter because their favourite journalist had not covered it and it was someone they did not know. That told me a lot about the culture of putting stuff in the public domain.

The critical point of this motion put forward by Senator Nettle is that Senator Nettle wants a parliamentary inquiry. I do not at this stage; I want a judicial inquiry. Let me list the reasons. Firstly, there is a lot of confidential and secret information that is pertinent to this case that will never be released to a parliamentary committee, whether it meets in public or in camera. But you can do that in a judicial inquiry, and that is much more likely to get a result. This is what will happen if this motion gets passed today—it will not, but if it did; let us pretend. It will then go to a committee with a government chair and a government majority, who will then set the timing of the hearings, set the witnesses and set the tone, and it will just become a political circus. The opposition members and the minor parties will be demanding these witnesses appear; the majority will overrule them. They will demand these papers be produced; the majority will overrule them. It will turn into a circus. That is not the intention of anyone in this chamber, I might add, but that is what will happen. Whereas with a judicial inquiry we can get a considered view from a judge, sometimes meeting in camera for the more sensitive material and producing something that will assist not only the parliament but also the executive government.

One of the most distressing things about this case and the trend worldwide is this: there does exist antiterror legislation, but there also exists a tendency of the Capone clause coming in—you cannot convict anyone on antiterror legislation, so you use secondary legislation to punish them, to detain them and to hurt them, and that was never the intention of that legislation. If this government wants to introduce secondary legislation as a safety net, where it misses terrorists on one point and fixes them up on another, it would at least have a case. But here these legislative instruments—these clauses and conventions that they are using—all exist for another purpose. It is not good enough to say: ‘We suspect Dr Haneef of this, we can convict him of nothing, but we’ll grab another piece of legislation and punish and harass him.’ That is simply not on as a philosophy of government.

Do not think it is unique to Australia. The United States boast that they cannot detain their citizens without charge being made. That sounds a terrific idea, except they can be detained as a material witness for five years with no charge. By the way, we are a lot better off than the United States; we are a lot better off in some ways than the 28 days in the UK. But that does not mean we cannot look to improve and put safeguards in, for every time you carry legislation on terrorism that restricts people’s civil liberties you must put in the counterbalancing scrutiny and the counterbalancing protections. In that way the community is protected. But the use of secondary legislation is really distressing to me.

Moving onto the question of the immigration minister, it is a long time since I have been an immigration minister, but I understand the pressures that an immigration minister is under. I am yet to be convinced that Mr Andrews committed any illegal acts in regard to this, unless we want to qualify stupidity as an unlawful activity in this country, because he has been quite, quite stupid in some of the statements he has made. That has to be acknowledged.

If he had actually taken action under the 457 visa and cancelled Dr Haneef’s visa long before Dr Haneef had won his freedom by the charges being dropped, I might understand it. But to have the charges dropped and then suddenly cancel his visa within minutes so he could be detained seems to me to be a very rash act. Some of the statements made by Mr Andrews have been totally confusing to me. He first of all said, ‘Oh well, his baby was born a month ago.’ In fact, it was born six days before. That is a fundamental mistake to make, because it does go to motive. Then, of course, Mr Andrews had been to assertiveness classes, because he did not perform too well in the first few press conferences and he went on Insiders and would not answer the question about the four phone calls. It is relevant when someone makes four phone calls to the British police to say, ‘I am returning your call. Do you want information of me?’ That is just ignored, apparently.

Then, of course, we had the extraordinary attack on Mr Rudd and Ms Gillard, demanding they explain his policy—demanding that they come out and give a full explanation of his decision! What does that tell you? What that tells you is: ‘Oh, I intended to wedge you. I failed and I demand to wedge you.’ That is what it basically says. That shows the desperation that was running through this. I do not want to actually allege that political self-interest has been put ahead of national interest here, but on occasions they have been confused—and confused to the disadvantage of many people.

Then Mr Andrews, having been put under the political cosh, seeks advice from Mr David Bennett QC. I have to say for the record that the opposition highly respects the legal opinions of the Solicitor-General. Over the years they have been exceptionally good. But, by the way, we have not seen many of them. Senators here will recall that on many occasions I have got up and asked for legal advice to be tabled only to be lectured by a variety of federal ministers: ‘It is not the government’s practice to table legal advice.’ I have made the point before: the only criterion they use is how far under the political cosh they are. So on this occasion Mr Andrews, having been put under intense pressure, releases the legal advice. But, of course, that will not be a precedent. The government only releases legal advice that is unimpeachable. If there is doubt, qualification, it hides behind executive privilege and does not table it in this chamber. There is no consistency whatsoever from this government when it comes to tabling legal opinions.

But he goes further than that. To get out from under this, he starts publishing restricted and secret material. This parliament extends a privilege to the executive to take charge of restricted and privileged material and trusts them to do so. Every now and then that is to their disadvantage, but not on this occasion. On this occasion Mr Andrews publishes the secret material, much against the wishes of the DPP and the Federal Police, just to save his own political skin. In this game, when that trust is extended to you, you take the lumps; you do not actually reveal secret and restricted information just to protect your own political hide. That is exactly what happened in this particular case.

When I look at all this and at Mr Andrews’s performance, what he ultimately comes down to saying is: ‘I have formed the view that Dr Haneef is a potential terrorist.’ That is the bottom line on this—that Dr Haneef is a potential terrorist. I ask this question: if he is, why did you let him go? Why did you let him go back to India, if he is a potential terrorist? There are ongoing inquiries by the Federal Police and ongoing consideration from the DPP. Why, Mr Andrews, did you let him go home? Well, basically to take the pressure off Mr Andrews and not have him around. That is the reason he went. I want to know what this country is doing letting ‘potential terrorists’ float around the countryside and go overseas. Aren’t we international citizens? Haven’t we got an obligation to the rest of the world? Not if he is a political embarrassment. Send him back home, where he might disappear.

But the most ingenuous argument here today is that this is an operational matter and we should not canvass it. What was Senator Ellison doing in here yesterday in answer to a preprepared question, giving a four-minute justification—going to the details of this case—when it is an operational matter? So you are allowed to comment in this chamber on an operational matter when your political future is at stake. When the government needs to get out and proselytise, you can do it. But if it is not convenient and you get asked this question in here, the minister here, Senator Johnston, would say: ‘This is an operational matter. Don’t comment.’ And he would be absolutely right. But it is not a condition, it is not a prerequisite, for this government to obey. It is happy when necessary to put secret information in the public domain. It is happy to canvass operational matters when it is under the political cosh—when it is politically expedient to do so.

On this occasion the opposition reiterates that there are concerns with regard to the Haneef case. It is not so much to do with the legislation but with the way the law enforcement authorities have handled the case. It does need examination, but there would be no value in it becoming a political circus by being referred to a committee with a government majority that can be manipulated. For the future good of the government, these matters require an independent judicial inquiry so that we can rectify the necessary procedures so that we do not have a repeat of this. You have to understand that the antiterrorism laws have majority support in this country—and we want to make sure they continue to have majority support. We do not want them undermined by poor procedure, we do not want them undermined by sensationalism and, frankly, we do not want to treat people like this.

When Dr Haneef left this country, the immigration minister said, ‘He has run away, he has left the country; that is proof of his guilt.’ What sane person would stay in this country having been detained for 12 days, put in an orange uniform, put in handcuffs and vilified by the press? He knew he had relatives being detained in the UK who were probably far more guilty than he could ever be. He had a newborn daughter in India. Having all that, where would you go? I ask those opposite: wouldn’t you do a runner, too? I think I might have. I do not think I would have said: ‘All is forgiven in Australia. What a great place! I’m going off to the Cox Plate or the Hiskens Steeple next week. It’s just great!’ Of course you would go away and have a break from it! When it comes to cancelling someone’s visa, one of the things you might have taken into account is what sort of hell they had been through in the last 12 days. I think it is proper for a minister to balance that off—that he had in fact gone through a very traumatic experience. Anyway, let us not make conclusions and judgements on this. Let us ask for a judicial inquiry, get a rational approach to this particular issue, and reassemble to debate such a judicial report in this chamber at a later date.


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